United States of America v. Austin et al

Filing 71

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Steven C. Yarbrough regarding 69 Opposed Motion for Entry of Order of Foreclosure and to Vacate. Objections to PFRD due by 11/14/2018. Add 3 days to the deadline i f service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (hm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
v.

Civ. No. 15-1072 MV/SCY

MARK AUSTIN, and
CATHERINE AUSTIN,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the United States’ Opposed Motion for Entry of
Order of Foreclosure. Doc. 69. On September 5, 2018, United States District Judge Martha
Vazquez referred oversight of the foreclosure proceedings to the undersigned. Doc. 68.
Defendants Mark and Catherine Austin did not file a response to the motion and the time to do so
has now passed. For the reasons set forth below, I recommend granting the motion.
I.

Analysis
Under this district’s Local Rule 7.1(b), “[t]he failure of a party to file and serve a

response in opposition to a motion within the time prescribed for doing so constitutes consent to
grant the motion.” D.N.M.LR-Civ. 7.1(b). According to the Tenth Circuit, “local rules of
practice, as adopted by the district court, have the force and effect of law, and are binding upon
the parties and the court which promulgated them. . . .” Smith v. Ford Motor Co., 626 F.2d 784,
796 (10th Cir. 1980) (citation and quotation omitted). “Although a pro se litigant’s pleadings are
to be construed liberally and held to a less stringent standard than formal pleadings drafted by
lawyers, [the Tenth Circuit] has repeatedly insisted that pro se parties follow the same rules of

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procedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005) (internal citations, quotation marks, and alterations omitted).
In this case, the United States filed its motion for entry of an order of foreclosure on
October 1, 2018 and noted that Defendants opposed the motion. Doc. 69 at 4. Defendants were
properly served with a copy of the motion both electronically and via mail. Id. To date,
Defendants have not filed a response to the motion and the time to do so has now passed. See
D.N.M.LR-Civ. 7.4(a) (responses to written motions must be served and filed within fourteen
(14) calendar days after service of the motion); Fed. R. Civ. P. 6(d) (allowing an additional three
(3) days when service is made under Fed. R. Civ. P. 5(b)(2)(C)-(F)). The Court will accordingly
construe Defendants’ lack of a response to the motion as consent to the granting thereof.
Moreover, having reviewed the motion and the proposed Order of Foreclosure and to
Vacate (Doc. 69-1) attached to the motion, I find that the proposed order complies with the
requirements of 28 U.S.C. §§ 2001(a), 2002, and 2004 and is reasonable. The order directs Mr.
and Mrs. Austin and any other occupants to vacate the property within 30 days of entry of the
order. The order strictly adheres to the requirements of 28 U.S.C. §§ 2001(a) and 2002 as to the
location of the sale and notice by publication. All other terms and conditions of the proposed sale
seem reasonable and fall within the Court’s broad discretion for setting those terms and
conditions. See United States v. Branch Coal Corp., 390 F.2d 7, 10 (3d Cir. 1968) (“Congress
has authorized the federal judiciary to use sound discretion in setting the terms and conditions for
judicial sales.”).
II.

Conclusion
IT IS THEREFORE RECOMMENDED that:

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1. the Court GRANT the United States’ Motion for Entry of Order of Foreclosure (Doc.
69); and
2. the Court enter the Order of Foreclosure and to Vacate (Doc. 69-1).1

___________________________________
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day period
if that party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.

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 The dates suggested in the proposed order will be modified to accommodate the 14-day objection period. 

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